Full opinion text
ORDER COUGHENOUR, District Judge. TABLE OF CONTENTS I. INTRODUCTION........................................................1163 II. BACKGROUND..........................................................1163 A. Statutory and regulatory context of ESA section 7 consultations............1163 B. Promulgation of the counterpart regulations regarding FIFRA actions____1163 C. Effect of counterpart regulations.......................................1164 D. Plaintiffs’ complaint...................................................1166 III. ANALYSIS..............................................................1166 A. Summary judgment standard ...........................................1166 B. Jurisdictional challenges to Plaintiffs’ complaint..........................1167 1. Standing ........................................................1167 2. Ripeness.........................................................1170 C. Standard of review for agency action....................................1175 D. Standard of review for facial challenges to regulations.....................1175 E. Merits ..............................................................1176 1. ESA challenges...................................................1176 a. Regulations’ substantive compliance with ESA section 7(a)(2)____1176 i. NLAA determinations.....................................1176 Mandatory nature of “consultation”......................1177 Meaning of “consultation”..............................1178 ii. Optional formal consultations...............................1180 iii. Emergency consultations on FIFRA section 18 registrations...........................................1180 b. Services’ compliance with ESA section 7(a)(2)....................1181 i. “Insure”.................................................1182 EPA methodology & NLAA-to-“not likely to jeopardize” process..................................1182 FIFRA section 18 and “emergencies”....................1194 ii. Best science..............................................1196 2. NEPA challenge..................................................1196 a. Timing......................................................1197 b. Substance of the EA...........................................1199 IV.CONCLUSION 1200 I. INTRODUCTION This matter has come before the Court on the parties’ cross-motions for summary judgment. Having carefully considered the papers filed by the parties and the entire record now before the Court, the Court has determined that no oral argument shall be necessary. For the following reasons, the Court hereby GRANTS in part and DENIES in part Plaintiffs’ motion, GRANTS in part and DENIES in part the Federal Defendants’ motion, and GRANTS in part and DENIES in part the Defendant-Intervenors’ motions. II. BACKGROUND Plaintiffs, a group of organizations who have an interest in preserving and conserving the environment, brought this suit to challenge certain actions taken by the Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively “the Services”), alleging that the actions violate section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, and that they were taken without adherence to the procedural requirements of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. A. Statutory and regulatory context of ESA section 7 consultations The Endangered Species Act provides certain protections to species listed under ESA section 4 as “endangered” or “threatened” (collectively “listed species”). Section 7(a)(2) of the ESA states: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. 16 U.S.C. § 1536(a)(2) (parenthetical omitted). The “Secretary” referred to in the statute, in the case of the Secretary of Commerce (for some marine species), has delegated his ESA role to NMFS, and in the case of the Secretary of the Interior (for the remaining listed species), has delegated her ESA role to FWS. In 1986, the Services jointly issued regulations further shaping the section 7 consultation process. 51 Fed.Reg. 19,926 (1986). These regulations created three categories of federal agency action possibly requiring consultation: actions likely to adversely affect (“LAA”), actions not likely to adversely affect (“NLAA”) and actions that will have no effect on listed species or critical habitat. LAA actions require formal consultation, while NLAA actions may fulfill the statutory and regulatory requirements with a streamlined informal consultation. No consultation is required for actions that have no effect on listed species. The regulations provided that “[t]he consultation procedures set forth in this Part may be superseded for a particular Federal agency by joint counterpart regulations among that agency”, [FWS], and the [NMFS]. 50 C.F.R. § 402.04 (effective June 3, 1986). The regulations require, however, that “[s]uch counterpart regulations must retain the overall degree of protection afforded listed species required by the Act and these regulations.” 50 C.F.R. § 402.04; 51 Fed.Reg. at 19,937. B. Promulgation of the counterpart regulations regarding FIFRA actions In 2004, pursuant to this authority to devise different consultation procedures, the Services promulgated new counterpart regulations for Environmental Protection Agency (“EPA”) actions under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”). Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 69 Fed.Reg. 47,732 (Aug. 5, 2004) (codified at 50 C.F.R. §§ 402.40-.48). “FIFRA is the primary statute under which EPA regulates the use of pesticides in the United States.” 69 Fed.Reg. at 47,733 (citing 7 U.S.C. § 136 et seq.)- In general, a pesticide may not be sold or distributed unless it has a license, or “registration,” from EPA. FIFRA section 12(a)(1). EPA “shall register a pesticide if’ among other things, “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(5). Recognizing that environmental standards and data evolve, FIFRA built in a periodic re-registration process, with the goal of achieving a review of each pesticide registration every fifteen years. 7 U.S.C. § 136a(g)(l). Although this re-registration process had been on the books since 1972, “as of 1986, EPA had re-registered none of the tens of thousands of pesticides subject to re-registration, and had completed its reassessment of none of the 600 pre-1972 pesticide active ingredients.” (Compl. ¶ 34 (citing Gen. Accounting Office, EPA’s Formidable Task to Assess and Regulate Their Risks 3 (1986)).) C. Effect of counterpart regulations The parties do not dispute that EPA is faced with a task of gargantuan proportions, nor do they dispute that the counterpart regulations challenged by Plaintiffs are an attempt to streamline and accelerate the process of registration and reregistration. See, e.g., 69 C.F.R. at 47,732 (explaining that “[tjhrough this final joint rulemaking, the FWS and NOAA adopt additional regulations to enhance the efficiency and effectiveness of the consultation process under section 7 of the ESA and to provide alternatives to the way EPA now consults with the Services under the ESA on regulatory actions under FIFRA involving pesticides”). Prior to adoption of the counterpart regulations, an NLAA determination could only be made by an agency with the written concurrence of the Director of the appropriate Service, and after preparation of a biological assessment by the appropriate Service or informal consultation with that Service. 50 C.F.R. § 402.14. The counterpart regulations now permit EPA to make NLAA determinations without informal consultation or the Services’ concurrence if EPA and the Services have entered into an “alternative consultation agreement” (“ACA”) meeting certain requirements, see 50 C.F.R. § 402.45. In the context of actions requiring formal consultation, the potential streamlining effect of the counterpart regulations is even greater. Where initiation of a written request for consultation used to trigger a whole host of Service responsibilities culminating in the production of a comprehensive biological opinion and discussion of that opinion with the requesting agency and any applicant, see 50 C.F.R. § 402.14(g), under the counterpart regul-tions, the Services’ obligations are now limited to (a) adopting in full EPA’s effects determination, (b) adopting EPA’s effects determination as modified by the Services, with a detailed explanation of the scientific and commercial data and rationale supporting any modification, or (c) providing EPA with “a draft of a biological finding that the proposed FIFRA action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, and describing any reasonable and prudent alternatives if available,” 50 C.F.R. § 402.46(c). Further streamlining the process is the fact that under the counterpart regulations, Service discussion with EPA or the applieant(s) of the biological opinion — should a Service choose option (b) or (c) (ie., non-wholesale adoption of EPA’s effects determination) — is at EPA’s option, rather than a mandatory part of the process. See 50 C.F.R. § 402.46(c)(3) (providing that “[t]he Service shall at the request of EPA or an applicant discuss with EPA and the applicant the Service’s review and evaluation under this section”), compare 50 C.F.R. § 402.14(g)(5) (not couched in optional language). Finally, the counterpart regulations expand the permissible use of the truncated “emergency” consultation procedures under 50 C.F.R. § 402.05 to cover all FIFRA section 18 actions, effectively equating FI-FRA emergencies with ESA emergencies. D. Plaintiffs’complaint Plaintiffs’ complaint asserts seven causes of action, as follows: (1) FWS and NMFS exceeded their authority, acted ultra vires, and acted arbitrarily, capriciously, and contrary to ESA section 7 by delegating their ESA consultations to EPA in the counterpart regulations and the alternative consultation agreement; (2) FWS and NMFS acted arbitrarily, capriciously, and contrary to the ESA by promulgating counterpart regulations and entering into the ACA, which fail to ensure that EPA pesticide registrations are not likely to jeopardize listed species or destroy or adversely modify their critical habitat; (3) FWS and NMFS acted arbitrarily, capriciously, and contrary to section 7(a)(2) by failing to reconcile the counterpart regulations and the ACA with the best available scientific information and by failing to ensure that EPA self-consultations will use the best available science; (4) The Services acted arbitrarily, capriciously, and contrary to ESA section 7(a)(2) in issuing counterpart regulations and entering into an ACA that authorize EPA to make “not likely to adversely affect” determinations without considering the environmental baseline or cumulative effects; (5) FWS and NMFS acted arbitrarily, capriciously, and contrary to the ESA and the joint consultation regulations by establishing an optional formal consultation process based on a rationale that runs counter to the record and the best science; (6) EPA acted arbitrarily, capriciously, and contrary to the ESA and the joint consultation regulations in making all FIFRA section 18 exemptions, even those based solely on economic losses, subject to truncated consultation procedures established for human health emergencies; (7) FWS and NMFS acted arbitrarily, capriciously, and contrary to NEPA and its implementing regulations by failing to prepare an environmental impact statement assessing alternatives to and the full impacts of the counterpart regulations and the ACA. (Compl.passim.) Thus, Plaintiffs’ complaint asserts both procedural and substantive challenges to the counterpart regulations. Plaintiffs, the Services, and Defendant-Intervenors have all filed cross-motions for summary judgment. III. ANALYSIS A. Summary judgment standard Rule 56 of the Federal Rules of Civil Procedure governs summary judgment motions, and provides in relevant part, that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the court must view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable fact-finder to find for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party bears the burden of showing that there is no evidence which supports an element essential to the non-movant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to defeat a motion for summary judgment, the non-moving party must make more than conclusory allegations, speculations or argumentative assertions that material facts are in dispute. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994). B. Jurisdictional challenges to Plaintiffs’ complaint The Services and Defendant-Interve-nors argue that the Court lacks jurisdiction to hear Plaintiffs’ claims because Plaintiffs do not have standing to bring this lawsuit and because Plaintiffs’ substantive challenges to the counterpart regulations are not yet ripe for consideration. It is Plaintiffs’ burden, at this stage of the litigation, to establish that there is no genuine issue of material fact remaining for trial regarding their standing and the ripeness of their claims. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (explaining that standing is not a “mere pleading requirement but rather an indispensable part of the plaintiffs case” and that “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation”). 1. Standing To have standing, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Citizens for Better Forestry v. USDA, 341 F.3d 961, 969 (9th Cir.2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). By “particularized,” the Supreme Court “mean[t] that the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. 2130. Put more simply, a plaintiff must “allege (1) personal injury (2) fairly traceable to the defendant’s allegedly unlawful conduct and (3) [that is] likely to be redressed by the requested relief.” Defenders of Wildlife v. EPA, 420 F.3d 946, 956 (9th Cir.2005). As Plaintiffs are organizations, Plaintiffs’ members must meet the standing test. See, e.g., id. at 956. Here, Plaintiffs’ members “use the waters of Washington for recreation, fishing, and aesthetic pursuits” (Comply 2), “engage in and obtain great enjoyment and benefit from observing, studying, and photographing wildlife, including threatened and endangered species” (ComplA 4), and “depend on fish as a natural resource and, until recent fisheries closures ... generated hundreds of millions of dollars in personal income to the [Pacific] region through commercial fishing” (Comply 8), among other things. These allegations regarding Plaintiffs’ enjoyment of and interest in listed species “meet the criteria for demonstrating an adequate injury in an environmental case” Defenders of Wildlife, 420 F.3d at 957. The Court begins by noting that with respect to the second and third prongs of the standing issue, the ease at bar is virtually on all fours with Defenders of Wildlife v. EPA The Defenders of Wildlife plaintiffs had alleged violations of ESA section 7(a)(2)’s substantive and procedural requirements. Id. at 957. In that case, the Ninth Circuit accepted the plaintiffs’ contention that ESA “section 7 consultation ha[d] in the past led to mitigation measures by real estate developers ... and ha[d] thereby protected listed species and their habitat.” Id. at 956. In particular, the court noted that during consultation regarding the challenged decision transferring pollution permitting authority from the federal agency to a state agency, FWS field staff had registered “serious reservations about the proposed transfer” because “section 7 consultations regarding past pollution permits in Arizona had led to mitigating measures to protect species’ critical habitat, and feared that, without such mandatory consultation, Arizona would issue permits without mitigating measures” and that “[a]s a result, there could be harm to certain listed species.” Id. at 952. Accordingly, the court found that “[t]he alleged injuries are fairly traceable to the EPA’s ... decision. As alleged by [Plaintiffs], that decision will remove water pollution permitting decisions from the significant protections provided by section 7 [consultations].” Id. at 958. In the case at bar, according to Plaintiffs’ allegations, the counterpart regulations would remove the Services from NLAA/“not likely to jeopardize” determinations, resulting in the removal of “the significant protections provided by section 7.” The counterpart regulations would diminish or delay section 7 “protections” in the ease of “optional formal consultations” and FIFRA section 18 emergency pesticide registrations. Lujan requires that these allegations regarding causation and redressability be supported by “facts showing that those choices have been or will be made in such a manner as to produce causation and permit redressability of injury.” 504 U.S. at 562, 112 S.Ct. 2130. For the following reasons, the Court finds that Plaintiffs have adduced sufficient facts to satisfy their burden of proof as to their standing. This Court has previously had occasion to address a lawsuit filed by the Washington Toxics Coalition, the Northwest Coalition for Alternatives to Pesticides, the Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources against EPA, seeking to compel EPA to conduct section 7 consultations regarding certain pesticides and their effects on listed salmon and steel-head. Wash. Toxics Coalition v. EPA No. C01-0132C (W.D. Wash. filed Jan. 30, 2001). In that action, after having reviewed the record, the Court found that EPA’s failure to initiate section 7(a)(2) consultations with NMFS with respect to 55 pesticides for which EPA’s own reports showed potentially significant risks to listed salmonids and their habitat, yet which had ongoing approval and or registration, violated ESA section 7(a)(2). Wash. Toxics Coalition v. EPA, No. C010132C, Order (W.D.Wash. July 2, 2002). Perhaps more pertinent is the fact, noted by the Ninth Circuit in its opinion affirming this Court’s orders, that EPA did not dispute that “scientific or competent declaratory evidence in the record demonstrated a causal link between the 54 pesticide active ingredients at issue ... and direct or indirect adverse effects on salmonid populations.” Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1029 (9th Cir.2005). Accordingly, the Court finds that the record shows that EPA’s continued registration of at least 54 pesticides without having satisfied its consultation obligations under the general consultation regulations has a causal link to direct or indirect adverse effects on listed species. Second, the administrative record is threaded through with consistent criticisms by Service personnel of EPA’s proposed assessment process. Most remarkable is that the tenor of these criticisms did not change throughout the entire time during which the Services and EPA supposedly were working together to come up with an ESA-compliant effects determination process. The substance of these critiques is discussed more fully in Section III(E), infra, addressing the merits of Plaintiffs’ claims. Perhaps more pertinent for the purposes of the standing analysis, many of the concerns that arose during the programmatic discussions had been voiced before by Service scientists in the context of specific pesticide registrations or interim registrations. (See, e.g., FWS 000720, FWS Letter to EPA re: Diazinon at 4 (July 20, 2000) (noting that sublethal effects of diaz-inon were a major concern); FWS 020627, FWS Letter to EPA re: Atrazine at 3 (June 27, 2002) (stating “EPA’s pesticide risk assessments do not address several other important data gaps, including” (1) sublethal effects; (2) use of surrogate species; and (3) “inert” ingredients and adju-vants); FWS 020726, FWS Letter to EPA re: Endosulfan at 4-6 (July 26, 2002) (raising the issue of EPA’s failure to adequately consider sublethal effects, disapproving EPA’s weak label requirements and warning EPA that its acceptance of manufacturer-submitted studies in support of reregistration — 78% of which did not conform to EPA’s own guidelines — “suggests that EPA may be unable to make a science-based decision” and that “the failure of EPA to require manufacturers to adhere to EPA requests 20 years [after EPA identified some of the same data gaps in a previous risk assessment] raises serious questions about data adequacy and the usefulness of EPA’s overall assessment”).) By June 2004, the Services’ concerns had neither changed nor abated. A draft NLAA nonconcurrence letter circulated by NMFS personnel, in which the Northwest Region Washington State Office (“WSO”) of NMFS reviewed the draft biological evaluations and requests for concurrence with EPA’s “may affect, not likely to adversely affect” determinations with regard to 28 pesticide registrations, noted almost identical categorical concerns with EPA’s assessments. (NMFS 5185, Draft Ltr. re: NLAA Nonconeurrence (June 7, 2004).) More pertinent is the fact that NOAA Fisheries does not concur with EPA’s effects determinations. NOAA Fisheries believes the proposed actions, which includes [sic] registrations/rereg-istrations of active ingredients, formulated products ... and mixtures ..., will have greater than discountable or insignificant effects on listed species. NOAA Fisheries has determined that the proposed actions are “likely to adversely affect” the 26 ESUs and thus, require formal consultation. (Id.) The Court is particularly impressed by the fact that of EPA’s 28 requests for concurrence, the WSO concurred with none of EPA’s NLAA determinations. This letter is direct evidence of a link, if such evidence were necessary, between the Services’ criticisms of EPA’s risk assessment process and the disparity between the results yielded by a typical EPA assessment and a Service study. Despite the Services’ consistent systematic criticism of EPA’s risk assessment process, the final procedure agreed to by the Services did not address these long-observed problems. Because Plaintiffs contend that EPA’s new risk assessment process contains the same defects as those observed by the Services prior to promulgation of the counterpart regulations, and because there is evidence on the record that EPA’s former process resulted in determinations with which the Services could not concur, and because there is evidence that this former process has resulted in continuing adverse effects on listed species, the Court finds that under Defenders of Wildlife v. EPA, Plaintiffs have sufficiently alleged that the counterpart regulations will cause personal injury via adverse effects on listed species. In the words of tire Defenders of Wildlife Court, “the alleged injuries are fairly traceable to the [counterpart regulations.] As alleged by [Plaintiffs], [the regulations] will remove [NLAA pesticide registrations] from the significant protections provided by section 7 [consultations],” 420 F.3d at 957, and diminish or delay section 7 protections in the case of optional formal consultations and FIFRA section 18 registrations. Finally, as in Defenders of Wildlife, Plaintiffs’ requested relief, which would result in reinstating the Services’ consultative role, would restore the “significant protections provided by section 7 [consultations].” Id. at 957. Accordingly, the Court finds that Plaintiffs have sustained their burden of showing that they have standing to bring their substantive challenge to the counterpart regulations. 2. Ripeness [T]he ripeness requirement is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). The ripeness analysis is comprised of two prongs: (1) “fitness of the issues for judicial decision,” id. at 733, 118 S.Ct. 1665 (citations omitted); and (2) “hardship to the parties of withholding court consideration,” id. In determining whether the issues are fit for judicial decision, a court looks to whether the controversy presented is “definite and concrete,” as opposed to “hypothetical or abstract.” Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation of Mont., 792 F.2d 782, 788 (9th Cir.1986) (citing Babbitt v. United Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). The Assiniboine Court further clarified that “[rjeview is not premature if the agency action is final, and is ‘purely legal.’ ” Id. at 798 (citing Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507). In that case, involving one entity’s abdication of its role in fact-finding and drawing initial conclusions, the court found that even if no actions had been taken as a result of or subsequent to the abdication of responsibility, the district court would have still been in a position to decide the merits of the plaintiffs’ challenge to the abdication. Id. Fitness may be lacking, however, if “judicial intervention would inappropriately interfere with further administrative action” or if the reviewing court “would benefit from further factual development of the issues presented.” Ohio Forestry, 523 U.S. at 733, 118 S.Ct. 1665. The relevant facts of this case are roughly analogous to the facts of Assiniboine. Here, Plaintiffs have challenged the Services’ promulgation of counterpart regulations, which Plaintiffs allege are an effective abdication of the Services’ consultative responsibilities in FIFRA actions. This case is not like Ohio Forestry, on which the Services rely, and in which the plaintiffs challenged the Forest Service on its promulgation of a management plan which would permit logging activity to increase but which did not itself actually authorize the cutting of any trees. 523 U.S. at 729, 118 S.Ct. 1665. In that case, the Supreme Court found that the Sierra Club’s challenge was non-justiciable because it did “not find a strong reason why the Sierra Club must bring its challenge now.” Id. at 734, 118 S.Ct. 1665. The Supreme Court reasoned that before actual logging would be allowed, the Forest Service still had a number of procedural steps to complete, one of which required it to “permit the public [including the Sierra Club] an opportunity to be heard.” Id. Most importantly, [t]he Sierra Club thus will have ample opportunity later to bring its legal challenge .... Any such challenge might also include a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent harm from logging. Id. If this case were to be analogous to Ohio Forestry, Plaintiffs would have had to sue EPA. However, Plaintiffs have very specifically asserted claims only against the Services. Thus, unlike the Sierra Club in Ohio Forestry, if Plaintiffs do not or are not allowed to challenge the Services at this stage, Plaintiffs may not have another chance to challenge the Services for having promulgated the counterpart regulations. For example, because the counterpart regulations permit EPA to make NLAA determinations without informal consultation of or written concurrence from the Services, should Plaintiffs wish to challenge an NLAA determination in the future, they may only assert this claim against EPA because the Services will have had no role in making this determination. In this respect, Plaintiffs are correct when they argue that the thrust of the Services’ motion with respect to ripeness “deseribe[s] a different cause of action against a different defendant.” (Pis.’ Reply 5.) Here, Plaintiffs’ lawsuit challenges the Services’ abdication of their consultative role in FIFRA actions, not EPA’s role in adopting the counterpart regulations or EPA’s decision regarding any particular registration. The record shows that the counterpart regulations, labeled “Final Rule” are, indeed, final. The removal of the Services from the consultation process was triggered by adoption of the ACA on August 25, 2004. Even if the Services or EPA were to determine that the ACA should be terminated, thereby restoring the Services’ role in some fashion, NLAA determinations made while the ACA had been in effect would continue to be considered valid. 50 C.F.R. § 402.45(c). Therefore, the Court finds that the counterpart regulations are sufficiently final to support a finding of ripeness. No party disputes that the issues presented are “purely legal” for the purposes of the ripeness analysis. However, the Services correctly point out that finality and the “purely legal” nature of the issue may not, alone, justify judicial review of a regulation where that review might inappropriately interfere with further administrative action, or where the Court might benefit from further factual development of the issues presented. With respect to the latter concern, the Services point to Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), in which the Supreme Court, acknowledging that “there can be no question that this regulation ... is a ‘final agency action’ ... [and] that the issue as [the plaintiffs] have framed it presents a purely legal question” nevertheless found that “judicial appraisal ... is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.” 387 U.S. at 164-65, 87 S.Ct. 1520. This case is unlike Toilet Goods Association (and Ohio Forestry) in that the regulation being challenged here does not set the stage for a specific kind of action to follow. In Toilet Goods Association and Ohio Forestry, the plaintiffs challenged the promulgation of a regulation that paved the way for a specific type of action, permitting inspection of facilities and data, and permitting logging of more land, respectively. The Sierra Club in Ohio Forestry challenged the land management plan as “wrongly favor[ing] logging and clearcutting.” 523 U.S. at 731, 118 S.Ct. 1665. The plaintiffs in Toilet Goods Association challenged a regulation giving the FDA Commissioner free access to the plaintiffs’ facilities In each case, the court found that a sample application of the regulation (ie., further factual development) would provide helpful data. The Toilet Goods Association Court explained: The regulation serves notice only that the Commissioner may under certain circumstances order inspection of certain facilities and data, and that further certification of additives may be refused to those who decline to permit a duly authorized inspection until they have complied in that regard. At this juncture we have no idea whether or when such an inspection will be ordered and what reasons the Commissioner will give to justify his order. 387 U.S. at 163, 87 S.Ct. 1520. The Court added that the necessary inquiry would have to look into “what types of enforcement problems are encountered by the FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets.” Id. In contrast, the regulation here is the action being challenged. The regulation itself effects a significant change in the Services’ involvement in FIFRA actions, and it is this change that is protested by Plaintiffs, not its effect on future pesticide registrations or re-registrations (although it could be fairly said that Plaintiffs protest the change because of its expected future effects). As a result, the Court does not perceive, nor do the Services or Defendant-Intervenors identify, any cognizable benefit to waiting for further factual development. Further factual development would shed no additional light on whether the Services’ alleged abdication of their section 7 consultative role was legally proper because the inquiry in this case is whether the Services acted arbitrarily and capriciously when, on the basis of the record already before them, they made the decision to promulgate the counterpart regulations. Therefore, the Court does not find that the potential benefit of additional factual development justifies delaying review of this final action. In addition, the Court does not find that judicial review at this point will inappropriately interfere with further administrative action. The Ohio Forestry Court, which suggested that courts consider this factor, reasonably suspected that premature review of the forest plan would deny the agency the opportunity to correct its mistakes and to apply its expertise in so doing because of history indicating that further consideration would actually occur before the Plan was implemented. 523 U.S. at 735, 118 S.Ct. 1665. In contrast, in the present case, the Court is not aware of any such history relevant to the kind of regulation in question. Furthermore, the specific effect of the counterpart regulations, removing a potential dissenting voice from EPA effects determinations, makes it less likely rather than more likely that future developments will inspire the Services to reconsider and “correct” the counterpart regulations, if necessary. The practical effect of the regulations, which removes the Services from part of the FIFRA loop, is to make it difficult for the Services to remain apprised of and involve themselves in policing EPA FIFRA determinations — a likely necessary element of an effort to recalibrate the counterpart regulations. For these reasons, the Court does not find that judicial review of the counterpart regulations will inappropriately interfere with further administrative action. Accordingly, the Court finds that the issues presented are fit for judicial review. The second prong of the ripeness analysis considers hardship to the parties of withholding court consideration. The Ninth Circuit has recognized that Ohio Forestry “answers [the hardship question] differently depending on whether a substantive or procedural challenge is made.” Citizens for Better Forestry v. Dep’t of Agric., 341 F.3d 961, 977 (9th Cir.2003). In the case of a substantive challenge to a substantive rule or regulation, such as in Ohio Forestry, no hardship occurs until a site-specific implementation. 523 U.S. at 733-34, 118 S.Ct. 1665. In the case of a procedural challenge {e.g., a claim that the NEPA procedure was not adequately followed), whether it be to a substantive or a procedural rule or regulation, the injury occurs at the time of the alleged procedural failure. Id. at 737, 118 S.Ct. 1665 (explaining, for example, that “a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper”). Generally speaking, Plaintiffs assert that their challenge to the counterpart regulations is a procedural challenge and therefore that hardship is irrelevant (or, in the alternative, has already occurred). In contrast, the Services and the DefendanNIn-tervenors argue that Plaintiffs’ challenge is to the substance of the counterpart regulations. Although Plaintiffs do assert a procedural claim, the bulk of their claims challenge the substance of the counterpart regulations as non-ESA-compliant. However, because the counterpart regulations are themselves a procedural measure, rather than a substantive one like the forest plan challenged in Ohio Forestry, Plaintiffs’ claim as to the substance (that is, as to the merits) is, ultimately, that the counterpart regulations work a procedural harm. In other words, Plaintiffs’ complaint effectively alleges two types of procedural harm at two different levels: (1) the Services, in promulgating the counterpart regulations, failed to follow NEPA procedures; and (2) the counterpart regulations themselves effect a procedural harm. Thus, under Ohio Forestry and the Ninth Circuit’s interpretation of that case in Citizens for Better Forestry, the injury to Plaintiffs, because it is a procedural one, has already occurred by the very promulgation of the counterpart regulations. Ae-cordingly, the Court finds that withholding review would exacerbate the hardship that already exists and that this matter is ripe for review. C. Standard of review for agency action The Court’s review of the Services’ promulgation of the counterpart regulations is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2). Under the APA, the Court may “hold unlawful and set aside” agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). “An agency action will survive arbitrary and capricious review if it is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute.” Defenders of Wildlife, 420 F.3d at 959 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotes omitted)). However, an agency action may be deemed arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. Most relevant to the present case is that “[a]gency actions may not, of course, be inconsistent with the governing statute.” Id. (citing 5 U.S.C. § 706(2)(A) instructing courts to “set aside” agency action “not in accordance with law”). D. Standard of review for facial challenges to regulations The parties disagree as to whether the counterpart regulations are reviewable under the standard set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) or the more stringent “no set of circumstances” standard articulated in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). As explained by the Ninth Circuit, “Chevron ... established the rule that when Congress has left a gap in a statute and authorized a federal agency to fill that gap, the agency’s interpretation is to be accorded deference as long as it is a ‘reasonable’ interpretation of the statute.” Van Tran v. Lindsey, 212 F.3d 1143, 1151 (9th Cir.2000). Thus, Chevron establishes a two-part analysis under which a court determining whether an agency regulation is inconsistent with its governing statute must (1) “ask whether Congress has directly spoken to the precise question at issue” and if so, whether the regulation comports with the clear meaning of the statute; and (2) if “the statute is silent or ambiguous with respect to the specific issue, [it] must ask whether the regulations promulgated by the agency are based on a permissible construction of the statute.” Akhtar v. Burzynski, 384 F.3d 1193, 1198 (9th Cir.2004). In contrast, under Salerno, it appears that a court may invalidate a regulation only if no set of circumstances exists under which the regulation would be valid. 481 U.S. at 745, 107 S.Ct. 2095 (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (applying Salerno to challenges of regulations: “[T]o prevail in such a facial challenge, [the challenger] must establish that no set of circumstances exists under which the regulation would be valid.”) (citing Salerno, 481 U.S. at 745, 107 S.Ct. 2095) (alterations and quotes omitted). Although the parties vigorously dispute the issue of which standard of review applies, none of the parties follow through on the notion that the two standards are not mutually exclusive. In any case, the Court need not determine whether Chevron is trumped by Salerno because the contours of this particular challenge do not require it. Plaintiffs’ claims are (1) that the very terms of the counterpart regulations themselves violate ESA section 7’s command to federal agencies to consult with the Services; and (2) that the Services themselves, in promulgating the regulations, violated ESA section 7 by failing to ensure that the regulations were “not likely to jeopardize” listed species. If Plaintiffs are correct, then every application of the counterpart regulations necessarily violates the statute. Whether and how the regulations are applied are immaterial. In other words, if Plaintiffs’ claims have merit, the arguably stricter Salerno standard is met and there would be no set of circumstances under which the counterpart regulations could be valid because their very terms violate the relevant statute. E. Merits Plaintiffs seek to set aside the counterpart regulations under the APA as contrary to ESA section 7(a)(2) and to obtain a declaratory judgment that the Federal Defendants violated NEPA. 1. ESA challenges Plaintiffs’ ESA-based challenges focus on both (1) the counterpart regulations’ substantive compliance with ESA section (7)(a)(2) (i.e., do the processes outlined in the counterpart regulations satisfy ESA section 7(a)(2)?), and (2) the Services’ compliance with the requirements of ESA section 7(a)(2) in promulgating the regulations (ie., did the Services “insure” that the counterpart regulations would be not likely to jeopardize?). The substantive challenges address NLAA determinations, optional formal consultation on LAA actions, and FIFRA section 18 registrations. a. Regulations’ substantive compliance with ESA section 7(a)(2) i. NLAA determinations Plaintiffs’ first substantive challenge to the counterpart regulations is that ESA section 7(a)(2) prohibits the Services’ delegation to EPA of their role in an NLAA determination. In determining what Congress has enacted, the Court must begin with the language of the statute. Akhtar, 384 F.3d at 1198 (citing Navajo Nation v. Dep’t of Health & Human Servs., 325 F.3d 1133, 1136 (9th Cir.2003)). The presumption is that “the ordinary meaning of the words chosen by Congress accurately express its legislative intent.” Brower v. Evans, 257 F.3d 1058, 1065 (9th Cir.2001). “The meaning of statutory language, plain or not, depends on context.” Id. “Context” includes “the design of the statute as a whole and ... its object and policy.” Id. “In determining a statutory provision’s meaning, [the Court] may consider the purpose of the statute in its entirety, and whether the proposed interpretation would frustrate or advance that purpose.” Id. (citing United States v. Mohrbacher, 182 F.3d 1041, 1049 (9th Cir.1999)) (quotations omitted). The relevant language of ESA section 7 states: “Each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of’ any listed species. As a point of departure, there is no dispute that this language requires an action agency to insure that any action authorized is not likely to jeopardize the continued existence of listed species. CropLife characterizes the critical question as whether this language “flatly prohibits the delegation of NLAA authority to EPA.” (CropLife’s Reply 3.) CropLife’s elegantly simple statement of the question rather misses the point. As the Services point out in their brief, “[i]n-deed, the ‘not likely to adversely affect’ standard is not even found in the ESA.” While the Services make this point in an effort to show that section 7(a)(2) does not require consultation with and the assistance of the Services to reach an NLAA determination (because NLAA language is not to be found anywhere in the statute), what the point actually shows is that a finding of NLAA is not statutorily equal to a finding that an action is “not likely to jeopardize.” In other words, an NLAA determination, standing alone, is not equivalent to a section 7(a)(2) determination made by an action agency “in consultation with and with the assistance of the Secretary” that an action is “not likely to jeopardize.” Because the NLAA concept is irrelevant to the actual statute, Defendants are correct insofar as they argue that the statute permits the Services to delegate their authority to participate in NLAA determinations. However, to the extent that Defendants’ argument is also an argument that the Services may abdicate their consultative role in formulating the conclusion that an action is “not likely to jeopardize,” this argument requires further discussion. Mandatory nature of “consultation” The Services concede that section 7 contains a “requirement to act ‘in consultation with and with the assistance of the Secretary’ ” (Fed. Defs.’ Opp’n 25), but they and CropLife contend that the section’s mandatory “shall” applies only to the substantive obligation to ensure that an action is not likely to jeopardize listed species (Fed Defs.’ Opp’n 26; CropLife’s Mot. 25-30). This latter argument has been flatly rejected by the Ninth Circuit. In Defenders of Wildlife, the court stated that Section 7(a)(2) makes no legal distinction between the trigger for its requirement that agencies consult with FWS and the trigger for its requirement that agencies shape their actions so as not to jeopardize endangered species.... An agency’s obligation to consult is thus in aid of its obligation to shape its own actions so as not to jeopardize listed species, not independent of it. Both the consultation obligation and the obligation to ‘insure’ against jeopardizing listed species are triggered by ‘any action authorized, funded, or carried out by such agency,’ and both apply if such an ‘action’ is under consideration. 420 F.3d at 961. In the same vein, but broader, the Ninth Circuit has held generally that the ESA’s procedural requirements are as important, and are mandatory to the same degree as its substantive requirements. The procedural aspects of section 7(a)(2), in which the consultation requirement appears, were discussed in the Ninth Circuit by Thomas v. Peterson, a case challenging the adequacy of an agency’s investigation into the effect of a project on the endangered Rocky Mountain Gray Wolf. 753 F.2d 754, 763 (9th Cir.1985). Although the district court had concluded that the agency had committed only an insignificant procedural violation, the Ninth Circuit disagreed. Id. at 763 (stating that the failure “goes beyond the technical violation cited by the district court and is not de minimis”). The court went on to explain: “The strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions.” Id. at 764 (emphasis omitted). The Ninth Circuit has not backed off from the Thomas Court’s position, repeating it in Conner v. Burford, 848 F.2d 1441, 1458 n. 40 (9th Cir.1988) and in Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir.2006). Put together and applied to this case, Defenders of Wildlife and the Thomas line of cases make it clear that ESA section 7(a)(2) requires that EPA, in contemplating even actions deemed NLAA, “consult” with the Services to ensure that its action be not likely to jeopardize listed species. Meaning of “consultation” The Services argue that section 7(a)(2)’s injunction to consult “does not address whether an action agency like EPA can make its own ‘not likely to adversely affect’ determinations without further consultation with the Services.” (Fed. Defs.’ Mot. 25.) CropLife suggests that section 7(a)(2) “can be read as just requiring agencies to ‘insure’ against likely jeopardy through some process developed ‘in consultation with and with the assistance of the Service.” (CropLife’s Mot. 26.) With respect to the first argument, advanced by the Services, the Court’s holding that an NLAA determination is not equivalent to a section 7(a)(2) determination of “not likely to jeopardize” means that the ESA does not govern how NLAA determinations are to be made. In other words, Defendants are technically correct — -NLAA determinations may be made unilaterally. What the ESA does do, however, is govern how an NLAA determination is to be converted into a proper ESA-compliant determination of “not likely to jeopardize.” A unilaterally-made NLAA determination cannot be converted into a section 7(a)(2) finding of “not likely to jeopardize” without “consultation” with the relevant Service. With respect to the second argument, it is true that “consultation” is not defined in the statute. “Consultation” is defined in Black’s Law Dictionary, in relevant part, as “[t]he act of asking the advice or opinion of someone (such as a lawyer)” or “a meeting in which parties consult or confer.” Black’s Law Dictionary (8th ed.2004). In addition to this ordinary dictionary meaning of the word, the Court must look to the statutory context in which it appears, including “the design of the statute as a whole and ... its object and policy.” Brower, 257 F.3d at 1065. In the present case, contrary to the Services’ assertion that the statute does not “provide any direction or criteria” regarding how the consultation is to be carried out, the statute does contain some highly relevant provisions relating to consultation. First, the “in consultation with” language is paired with “with the assistance of the Secretary.” This second part of the clause reinforces the notion that a section 7(a)(2) determination is not to be unilaterally made. Second, section 7(b)(3)(A) states that after the conclusion of a section 7(a)(2) consultation, the Services “shall provide to the Federal agency ... a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A). Third, section 7(a)(2) itself concludes with the admonition that “[i]n fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.” Both of these provisions, especially section 7(b)(3)(A), emphasize the rigor of the consultation contemplated by the statute. In addition to these internal indicators of what is meant by “consultation,” the Court cannot ignore that the ESA mandates that all federal agencies “shall insure” that their actions be not likely to jeopardize listed species. In light of the ordinary meaning of “consultation,” the ESA’s internal express descriptions of “consultation,” and the ESA’s substantive mandate, the Court does not find that with the use of the word “consultation” Congress left a “gap” to be filled by the Services. Although it may be true that “Congress left it to the informed discretion of the Services to define the process of consultation” (Fed. Defs.’ Reply 12 (emphasis added)), Congress did not leave it to the discretion of the Services to define consultation in a way that results in no consultation at all on NLAA actions. In other words, while the wording of the statute and the statute’s lack of granular direction on the process of consultation may leave it to the discretion of the Services to create a range of types of consultation, “shall ... in consultation with” cannot be read as “no consultation on NLAA actions.” For these reasons, the Court cannot conclude that the plain meaning of “consultation” contemplates the joint creation of a process by which action agencies may unilaterally make the critical section 7(a)(2) determination regarding NLAA actions. Accordingly, the Court finds that the portion of the counterpart regulations permitting no Service consültation on NLAA actions fails the Chevron step-one test and is therefore not in accordance with the law within the meaning of 5 U.S.C. § 706(2)(A). This portion of the rules must therefore be set aside. 5 U.S.C. § 706(2). ii. Optional formal consultations Plaintiffs’ complaint also challenges the counterpart regulations as they relate to “optional formal consultations” (Compl. Count V). The “optional formal consultation” provisions permit EPA, as part of its effects determination to be included in a written request for consultation, to propose a jeopardy conclusion and an incidental take statement that may then be adopted by the relevant Service. If the Service adopts EPA’s effects determination, it may then issue a written statement doing so, converting EPA’s proposal into a Service biological opinion and incidental take statement as required by the ESA. 50 C.F.R. § 402.46. If, on the other hand, the Service disagrees, it may modify EPA’s effects determination or write its own biological opinion. Plaintiffs state that “[t]he regulations make it relatively simple for the Services to adopt that effects determination as their biological opinion, while erecting additional procedural hurdles if the Services decide to deviate from the EPA draft.” (Pis.’ Mot. 16.) They further argue that “[b]e-cause they are predicated on the Services’ endorsement of EPA’s risk assessments, the rule’s optional formal consultation procedures also cannot be sustained.” (Id. at 26 n. 7.) None of the parties address the optional formal consultation procedure at any length. However, it is clear that unlike the absolute recusal of the Services in the context of NLAA actions which plainly violated ESA section 7(a)(2)’s mandate to consult, the optional formal consultation procedure still preserves the Services’ role. Indeed, though Plaintiffs may be right that the new procedure lowers the barriers to a Service’s adoption of EPA conclusions and erects hurdles in the case of disagreement, there is nothing in ESA section 7(a)(2) that prohibits the shifting of burdens in this way. In addition, the Court notes that this alternative method of conducting and completing a “formal consultation” is “optional.” Because the Services remain free to amend or altogether reject EPA’s effects determination in favor of a Service-authored biological opinion, thereby preserving and retaining their consultative role, the Court does not find that the optional formal consultation procedure is inconsistent with ESA section 7(a)(2). iii. Emergency consultations on FI-FRA section 18 registrations The general consultation regulations permit an action agency, in “situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.,” to consult informally until “the emergency is under control,” at which time formal consultation must be initiated, if necessary. 50 C.F.R. § 402.05. FIFRA section 18 permits EPA to exempt state and federal agencies from the provisions of FIFRA under “emergency conditions.” 7 U.S.C. § 136p. The counterpart regulations permit EPA to “choose” to employ the emergency consultation procedures on FIFRA section 18 actions — in other words, permitting EPA ■to delay formal consultation on FIFRA section 18 actions. Like the “optional formal consultation” provisions, the emergency consultation provisions are merely optional. Thus, EPA may simply choose not to take advantage of them, thereby preserving the status quo and not altering its consultation habits. However, even if EPA were to use the emergency consultation procedures to the maximum extent permitted under the counterpart regulations, the Court does not find that the temporal shifting of consultations that results is actually inconsistent with ESA section 7(a)(2). As the Court noted supra in its discussion of the optional formal consultation provisions, there is nothing in ESA section 7(a)(2) that prohibits the mere shifting about of consultations. Accordingly, the Court does not find that the counterpart regulation provisions regarding FIFRA section 18 registrations are inconsistent with ESA section 7(a)(2). b. Services’ compliance with ESA section 7(a)(2) The parties appear to disagree as to whether the Services’ action in promulgating the counterpart regulation is itself subject to ESA section 7(a)(2)' — whether, in other words, the promulgation of the counterpart regulations constitutes an “agency action” under section 7(a)(2). The Court concludes that it does. “Agency action” is defined by section 7(a)(2) as “any action authorized, funded, or carried out by” a federal agency. 16 U.S.C. § 1536(a)(2). In turn, the term “federal agency” is defined as “any department, agency, or instrumentality of the United States.” 16 U.S.C. § 1532(7). For the purposes of section 7(a)(2), courts construe “agency action” broadly. Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir.1994). “An action is an ‘agency action’ if there is ‘discretionary Federal involvement or control.’ ” Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996). Discretionary involvement or control is found where an agency retains the ability to influence or change a given project. Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir.1995). Here, as the promulgators of the counterpart regulations, the Services are undoubtedly free to alter or withdraw them. Therefore, the Court finds that promulgation of the counterpart regulations is an “agency action” within the meaning of ESA section 7(a)(2) and must comply with its terms. Plaintiffs argue that the Services failed to comply with section 7(a)(2)’s mandates